ABDUR RAHMAN FARUQ PIRZADA, J.---By this application the applicant has prayed for bail in the case vide Crime No.281 of 2007 Police Station Tando Adam for offences under sections 324, 333A(i), P.P.C. And 17(3) Offences Against Property (Enforcement of Hudood) Ordinance, 1979.
2. The F.I.R. Was lodged by complainant Abdul Aziz at Police Station Tando Adam on 26-12-2007 at 2-30 p.m. As briefly stated, the prosecution case is that the complainant is a shopkeeper. On 26-12- 2007 at noon time the complainant along with his cousin Babar and uncle Gulab were going together from his shop towards their house. At about 1-00 p.m. When they reached near complainant's house, two persons with open faces came from behind them and affronted them.
Out of them, one person was armed with dagger, whereas the other was armed with pistol. The accused armed with pistol, pointed his pistol towards the complainant, and asked him to give him evertying which he possessed. Thereafter, the accused with pistol, took out the cash of Rs.3,500 and one mobile phone from his left pocket. The complainant made resistance, on which the said accused inflicted blows with pistol butt on his head, and with intention to commit murder, fired a straight shot, but the complainant fell down and the fire-missed. On firearm reports the neighbours came out and arrived at the scene of occurrence, while making challenges, on seeing whom, the accused ran away towards the road. The complainant party along with neighbours chased the accused; near Eidgah A,S.-I. Muhammad Laiq Waggan along with other police personnel arrived in an official vehicle, and the complainant party narrated the incident to them. Thereafter the complainant party with the aid of A.S.-I. Muhammad Laiq Waggan and his subordinate staff, apprehended one accused person along with pistol, whereas the other accused armed with dagger escaped away, while taking advantage of rush in the town. A.S.-I. Muhammad Laiq Waggan secured the pistol from the possession of apprehended accused; on inquiry the accused gave his name as Gul Sher son of Shabrati by caste Malik. The recovered pistol was checked and found to contain one empty cartridge of .12 bore, which was unloaded. During personal search of accused, A.S.-I. Muhammad Laiq Waggan recovered two cartridges of .12 bore and the robbed mobile phone of Motorolla Company, and also recovered the robbed .Cash of Rs.3,500 from front pocket of shirt of accused. On inquiry about the licence of pistol by A.S.-I. Muhammad Laiq Waggan, the accused disclosed that the same pistol was without licence. Such mashirnama of arrest and recovery was prepared at the spot, in presence of Mashirs Abdul Hafeez, and H.C. Mir Muhammad. The recovered pistol and cartridges were sealed, whereafter the arrested accused along with the recovered property were brought by A.S.-I. Muhammad Laiq Waggan to Police Station, where the F.I.R. Was registered.
3. Learned counsel for applicant has submitted that the complainant and both the private eye- witnesses of the incident, so also the Mashir of arrest and recovery, are not supporting the prosecution case. The complainant Abdul Aziz, P. Ws. Babar and Gulab, as well as Mashir Abdul Hafeez have sworn their affidavits before the learned trial Court, wherein they have completely exonerated the applicant/accused from the commission of alleged offence. Such affidavits were sworn on 22-1-2008. Learned counsel has contended that the three private eyewitnesses including complainant and two others, have not supported the prosecution case, and consequently the case is bound to end in acquittal, as such, no useful purpose will be served if the applicant continues to remain confined in Jail any further. He has also submitted that even though the police witnesses, who are said to have arrived at the scene later, support the prosecution case, still the prosecution would be left with two separate sets of witnesses, who may contradict each other, with regard to the actual version of the prosecution case; for that matter the case of prosecution would be rendered as doubtful, and the benefit of such doubt may go in favour of accused, rather than in favour of prosecution. Learned counsel for applicant has also argued that even otherwise the prosecution case would seem to be unnatural and artificial, since the incident allegedly occurred at 1-00 p.m. Whereas the applicant/ accused was said to be arrested at 1-45 p.m. As per Mashirnama of arrest and recovery. According to him, it would not be believable that the police officials along with complainant party kept chasing the accused for about 45 minutes, whereafter he was finally arrested. He has also pointed out that as per F.I.R. While the complainant party were chasing the accused, the police party had arrived in an official vehicle, and the complainant party narrated the incident to police officials, which too may have consumed considerable time. Learned counsel has also pointed out that the case is not likely to proceed in near future, since the co- accused is an absconder, and the proceedings under sections 87/88, Cr.P.C. Against him may take considerable time. Learned counsel for applicant has placed reliance upon various authorities of law, viz. 1991 SCMR 111, PLD 2002 Karachi 125, PLD 2004 Karachi 566, 2006 YLR 3029, 2002 MLD 400, 1979 SCMR 30 and 1988 SCMR 474.
4. Complainant Abdul Aziz along with prosecution witnesses Babar and Gulab are present in Court.
On query, they have stated that the applicant is innocent, and some other robbers were liable for the alleged offence, but they had escaped away. They have categorically stated that the applicant did not commit robbery from complainant.
5. Learned A.A.-G has opposed the bail application, while submitting that the applicant is involved in a serious offence of robbery, and he was arrested at the time of commission of alleged offence, and the recovery of pistol as well as robbed Mobile Phone and Cash of Rs.3,500 was effected from him. According to him, such mashirnama of arrest and recovery was prepared at the spot. He has submitted that the trend of complainant and prosecution witnesses to resile away from their earlier statements, is to be discouraged, since the persons doing so are involved in this practice, due to some motivation. He has also submitted that the police personnel who had finally arrested the applicant along with pistol and robbed property, would be material witnesses, whose evidence cannot be discarded.
6. I have carefully considered the submissions made by learned counsel for applicant as well as learned A.A.-G. Although the F.I.R. Was lodged on the same date at 2-30 p.m., thereby implicating the applicant/accused, who was allegedly apprehended by complainant party with the aid of police officials, the complainant and both the eye witnesses of inciaent viz. Babar and Gulab have admittedly sworn their affidavits before the learned trial Court, wherein they have exonerated the applicant from alleged offence. They have stated in their affidavits that the actual robbers were not identified by them, and they had not chased the robbers. It has also been stated by complainant party that nothing was recovered from the applicant in their presence. Even P.W.
Abdul Hafeez the mashir of arrest and recovery swore his affidavit before the learned trial Court, in which he did not support the prosecution case, with regard to the arrest of accused as well as recovery allegedly made from the applicant. The complainant and P.Ws. Babar and Gulab are present in Court and they have verified that they had sworn their own affidavits before the learned trial Court, and they support their contentions as made in the affidavits. Even though there are specific allegations in the F.I.R. Against applicant, but the same has to be seen in juxta position with the stance of P.Ws. Taken before the learned trial Court. The contentions of learned counsel for applicant carries weight that the private eye-witnesses including complainant are not supporting the prosecution case, and prima facie the case is not likely to end in conviction of accused. Even the mashir of arrest and recovery has not supported the arrest of applicant during commission of offence, so also the alleged recovery of pistol and robbed property from his possession.
7. So far as the evidence of P.Ws./Police Officials who arrived later at the scene, is concerned, admittedly they are not the eye-witnesses of actual incident of robbery but they are stated to have arrived later, when the complainant party were in pursuit of the accused. As per F,I.R. The police officials were narrated the story by complainant party, whereafter they joined them in chase of accused and finally after the lapse of about 45 minutes, they allegedly arrested him. Apart from the controversy, as to whether the prosecution story was authentic with regard to the alleged arrest after about 45 minutes, the fact remains that the mashir Abdul Hafeez has also not supported the prosecution case by way of filing his own affidavit before the learned trial Court. I agree with the contention of learned for applicant that there are two different sets of P.Ws. Who may lead evidence in opposite directions. However, the prime importance will naturally go to the complainant himself from whom the robbery was committed, as well as the private eye-witnesses, So far as the evidence of police officials is concerned, that may be a corroborative piece of evidence, which may lend support to the version of complainant party, since they arrived later at Wardat and joined the complainant party in chase of accused.
8. Respectfully the reliance may be placed on the case of Jawed Ahmed v. The State (2002 MLD 400 Karachi), which is D.B. Authority of law, in which it was, inter-alia, laid down that the complainant, abductee and two prosecution witnesses had ruled out the possibility of commission of offence at the hands of accused through affidavits before trial Court and shifted the burden of implicating the accused in F.I.R. And section 161, Cr.P.C. Statements on the police, thereby making the case of two versions which had called for further inquiry.
9. In the case of Muhammad Nawaz alias Najja v. The State (1991 SCMR 111), the bail was granted to accused, when the prosecution witnesses appeared in Court and supported averments made by them in their affidavits to the effect that accused was not implicated in occurrence.
10. In the case of Mumtaz Ali v. The State (2006 YLR 3029 (Karachi), the bail was granted to accused in the case under section 17(3) Offences Against Property (Enforcement of Hudood) Ordinance, 1979, with the following observations:- "In the F.I.R. The name of the applicant is appearing. However, now the complainant has filed an affidavit that he has not given the name of the applicant and the police had given his name in the F.I.R. On their own accord. The effect of the affidavit is that the complainant and P.Ws. Have exonerated the applicant. Now two sets of evidence are in the case, one in shape of statements under section 161, Cr.P.C. And the other is in the shape of affidavits sworn by the complainant and the eye-witnesses. Case being of two versions, question as to which version was correct, was yet to be decided at the time of trial. Due to two versions the doubt is created and the benefit of doubt will go to the accused. In reported case of Syed Amanullah Shah v. The State PLD 1996 SC 241 the Honourable Supreme Court has held that where doubt arises regarding participation of accused in the commission of crime then it is better to keep accused on bail rather than to keep him in jail.
Furthermore, due to affidavits of the complainant and the P.Ws., the applicant has made out a case of further inquiry into his guilt. In the reported case of M. Sadiq v. Sadiq PLD 1985 SC 182, the Honourable Supreme Court held that bail can be granted as of right if the officer Incharge of Police or Court comes to a definite conclusion on consideration of entire material that there are no reasonable grounds for believing that accused has committed a non-bailable offence. In all the above reported cases relied upon by the learned counsel the bail was granted to the accused after considering the affidavits filed by the complainant and P.Ws.
"Upon the above discussion, I am satisfied that in view of affidavits filed by the complainant and P.Ws., resiling from their previous version and exonerating the applicant a reasonable doubt has been created and the case requires further inquiry. At present there are no reasonable grounds to believe that applicant is guilty of an offence punishable with death, imprisonment for life or 10 years, so as to deprive him from the concession of bail."
11. The reliance is also placed on the case of Muhammad Hayat v. The State as reported in 1988 SCMR 474, in which it was laid down that affidavits of witnesses mentioned in F.I.R. Were filed to show that the case registered against accused was false and that the objection raised on behalf of State that by obtaining affidavits of eye-witnesses, appellants had tried to tamper with record was repelled, and it was held that prima facie there was no tampering of record if appellants, while they were admitted to bail had obtained affidavits of eye-witnesses etc. Not supporting the prosecution version, since those witnesses whose affidavits had been taken had not come forward to state that these had been obtained through coercion.
12. In the case of Ali Muhammad and another v. The State (PLD 2002 Kar. 125), it was laid down as under:-- "Upon the above discussion, I am satisfied that in view of the affidavits filed by the complainant and the prosecution eyewitnesses as well as the Mashir of recovery of crime weapon and empties resiling from their previous various statements and exonerating the applicant/accused a reasonable doubt had been created with regard to the guilt of the applicant/accused and the case requires further inquiry for connecting the accused with the above offence. This can only be done after a proper enquiry and determination as to which of the two versions supplied by the complainant and the prosecution witnesses is more reliable and trustworthy. At present there are no reasonable grounds to believe the applicant/accused to be guilty of an offence punishable with death, imprisonment for life or 10 years, so as to deprive them of the benefit of the bail in view of the embargo contained under section 497, Cr.P.C."
13. In support of the above contentions, the reference may also be made to the cases of Zafar Iqbal v. The State (PLD 2004 Karachi 566), Rehmat Ali and another v. The State (1979 SCMR 30) and Allah Bakhsh v. Nazar Hussain Shah (1979 SCMR 137).
14. In view of the foregoing discussion, I am of the considered view that applicant is entitled to the concession of bail. Accordingly this application is allowed, and the applicant may be released on his furnishing solvent surety in the sum of Rs.1,00,000 (One Lac) and P.R. Bond in the like amount to the satisfaction of trial Court.